Citation NR: 9635123
Decision Date: 12/09/96 Archive Date: 12/19/96
DOCKET NO. 94-29 636 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant, his wife, B.C., and his mother, K.C.
ATTORNEY FOR THE BOARD
R. Acosta, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1980 to April
1981.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a June 1994 rating decision of the
Department of Veterans Affairs (VA) Nashville, Tennessee,
Regional Office (RO), which denied a claim of entitlement to
service connection for post-traumatic stress disorder (PTSD).
A hearing was held on May 3, 1996, in Nashville, Tennessee,
before Jack W. Blasingame, who is a Member of the Board’s
Section deciding this appeal and was designated by the
Chairman to conduct that hearing, pursuant to 38 U.S.C.A.
§ 7102(b) (West 1991). A transcript of the hearing was
received, and the case was subsequently referred for
appellate consideration.
The Board notes that the veteran’s representative indicated,
in the veteran’s Substantive Appeal (VA Form 9), dated in
July 1994, that the RO needed to obtain the veteran’s 1980-
1981 service medical records from Camp Lejeune, North
Carolina, as well as all medical records from VA’s medical
center (VAMC) in Nashville, Tennessee, “till [19]94.” She
also indicated that the veteran was receiving disability
benefits from the Social Security Administration (“S.S.,”
hereinafter “SSA”) for major depression, nerves and
flashbacks.”
The Board notes that the evidentiary record does contain the
veteran’s service medical records, to include those produced
at Camp Lejeune, North Carolina. The veteran’s claims
folder also contains evidence showing 2 psychiatric
admissions to Nashville, Tennessee’s VAMC. While it seems
that some evidence from said VAMC is indeed not of record,
however, the Board notes that its presence in the veteran’s
claims folder is not essential for a fair adjudication of the
veteran’s claim. As will be thoroughly explained in the body
of this decision, the veteran’s claim is not well-grounded,
and the Board is of the opinion that it is highly unlikely
that the information that could be obtained from these
missing medical records would provide the basis for a
different decision.
With regard to the allegations that the veteran is in receipt
of SSA benefits, the Board notes that, while the veteran’s
claims folder lacks copies of records related to the granting
of said benefits, these records are not essential for a fair
adjudication of the veteran’s claim. Again, the veteran’s
claim for service connection for PTSD is not well-grounded,
and the Board is of the opinion that it is highly unlikely
that the information that could be obtained from these
records would provide the basis for a different decision.
Finally, the veteran’s representative also stated, in the
July 1994 VA Form 9, that the veteran had “appealed to the
[Board] several y[ea]rs ago,” and that, since he did not hear
from “them,” he “would like to appeal again.” The
evidentiary record, however, does not support the allegation
of an earlier, unattended or disregarded appeal for any
issue. The only appeal of a denial of service connection for
PTSD of record is the one dated in June 1994, which initiated
the procedural actions and development that led to the
present appellate review. In reviewing the record, however,
it seems that the veteran’s representative may have been
referring to a letter, dated in June 1993, erroneously marked
as a “Notice of Disagreement” (NOD), in which the veteran
seemed to be attempting to appeal a May 1993 letter from the
RO. In that letter, the veteran was reminded that a claim
for service connection for a mental condition (not for PTSD)
had been previously denied. The record shows that, in
effect, such a claim had been denied in a rating decision
dated in July 1983, and that the veteran had never filed a
timely appeal. Therefore, that rating decision was final.
The record further shows that, in a letter dated in July
1993, the RO advised the veteran that he could reopen his
claim for a nervous condition at any time by submitting new
and material evidence. As shown, notwithstanding the
allegations from the veteran’s representative, no evidence of
an unattended or disregarded “appeal” of any issue is of
record.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that service connection for PTSD is
warranted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not submitted
evidence sufficient to justify a belief by a fair and
impartial individual that his claim of entitlement to service
connection for PTSD is well-grounded.
FINDINGS OF FACT
1. The record lacks a current diagnosis of PTSD.
2. The record lacks competent evidence of credible,
verifiable inservice stressors.
CONCLUSION OF LAW
The veteran has not submitted a well-grounded claim of
entitlement to service connection for post-traumatic stress
disorder. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R.
§§ 3.303, 3.304 (1995)
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The threshold question that must be resolved at the outset of
the analysis of any issue is whether the veteran’s claim is
well-grounded; that is, whether it is plausible, meritorious
on its own, or otherwise capable of substantiation. Murphy
v. Derwinski, 1 Vet.App. 78 (1990). The United States Court
of Veterans Appeals (Court) has said that the statutory “duty
to assist” under 38 U.S.C.A. § 5107(a) (West 1991) does not
arise until there is a well-grounded claim. Gilbert v.
Derwinski, 1 Vet.App. 49, 55 (1990).
The question of whether or not a claim is well-grounded is
significant because if a claim is not well-grounded, the
Board does not have jurisdiction to adjudicate that claim.
Boeck v. Brown, 6 Vet.App. 14, 17 (1993). In this regard,
the Court has observed that the statutory prerequisite of
submitting a “well-grounded” claim “reflects a policy that
implausible claims should not consume the limited resources
of the VA and force into even greater backlog and delay
claims which --as well-grounded-- require adjudication ... .
Attentiveness to this threshold issue is, by law, not only
for the Board but for the initial adjudicators, for it is
their duty to avoid adjudicating implausible claims at the
expense of delaying well-grounded ones.” Grivois v. Brown, 6
Vet.App. 136, 139 (1994).
A veteran has, by statute, the duty to submit evidence that a
claim is well-grounded. The evidence must “justify a belief
by a fair and impartial individual” that the claim is
plausible. 38 U.S.C.A. § 5107(a) (West 1991). Where such
evidence is not submitted, the claim is not well-grounded,
and the initial burden placed on the veteran is not met.
Tirpak v. Derwinski, 2 Vet.App. 609 (1992). In order for a
claim for service connection to be well grounded, there must
be competent evidence of a current disability (a medical
diagnosis), of incurrence or aggravation of a disease or
injury in service (lay or medical evidence), and of a nexus
between the in-service injury or disease and the current
disability (medical evidence). Caluza v. Brown, 7 Vet.App.
498, 506 (1995).
Evidentiary assertions by the veteran must be accepted as
true for the purposes of determining whether a claim is well-
grounded, except where the evidentiary assertion is
inherently incredible or when the fact asserted is beyond the
competence of the person making the assertion. King v.
Brown, 5 Vet.App. 19, 21 (1993).
Where the issue is factual in nature, e.g., whether an
incident or injury occurred in service, competent lay
testimony, including a veteran's solitary testimony, may
constitute sufficient evidence to establish a well-grounded
claim under [38 U.S.C.A. §] 5107(a). See Cartright v.
Derwinski, 2 Vet.App. 24 (1991). However, where the
determinative issue involves medical causation or a medical
diagnosis, competent medical evidence to the effect that the
claim is "plausible" or "possible" is required. See Murphy
v. Derwinski, 1 Vet.App. 78, 81 (1990). Furthermore,
"Congress specifically limits entitlement for
service-connected disease or injury to cases where such
incidents have resulted in a disability. See 38 U.S.C.A.
§ 1110 (West 1991). In the absence of proof of a present
disability there can be no valid claim." Brammer v.
Derwinski, 3 Vet.App. 223, 225 (1992).
Service connection may be granted for a disability resulting
from personal injury suffered or disease contracted or
aggravated in the line of duty, during a period of war.
38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303, 3.304
(1995). No compensation, however, shall be paid if the
disability is the result of the person’s willful misconduct
or abuse of alcohol or drugs. 38 U.S.C.A. § 1110 (West
1991). Further, the deliberate drinking of a known poisonous
substance or under conditions which would raise a presumption
to that effect is considered willful misconduct by
regulation. 38 C.F.R. § 3.301(c)(2) (1995).
Mere congenital or developmental defects are not diseases or
injuries in the meaning of applicable legislation for
disability compensation purposes. 38 C.F.R. § 4.9 (1995).
In order for a claim of entitlement to service connection for
PTSD to be granted, medical evidence establishing a clear
diagnosis of the condition, credible supporting evidence that
the claimed inservice stressor actually occurred, and a link,
established by medical evidence, between current
symptomatology and the claimed inservice stressor, must be
submitted. If the claimed stressor is related to combat,
service department evidence that the veteran engaged in
combat or that he was awarded the Purple Heart, Combat
Infantryman Badge, or similar combat citation will be
accepted, in the absence of evidence to the contrary, as
conclusive evidence of the claimed inservice stressor.
38 C.F.R. § 3.304(f) (1995).
Adjudication of a claim for service connection for PTSD
requires evaluation of the supporting evidence in light of
the places, types, and circumstances of service, as evidenced
by service records, the official history of each organization
in which the veteran served, the veteran’s military records,
and all pertinent medical and lay evidence. 38 U.S.C.A.
§ 1154(b) (West 1991); 38 C.F.R. §§ 3.303(a), 3.304(f)
(1995); see also West v. Brown, 7 Vet.App. 70, 75 (1994).
In Zarycki v. Brown, 6 Vet.App. 91, 98 (1993), the United
States Court of Veterans Appeals (Court) set forth the
framework for establishing the presence of a recognizable
stressor, which is an essential prerequisite to support a
diagnosis of PTSD. The Court’s analysis consists of the
following two major components:
1. Evidence demonstrating the existence
of an alleged stressful event; and
2. A determination as to whether the
stressful event is of the quality
required to support the diagnosis of
PTSD.
With regard to the first component, the evidence necessary to
establish the occurrence of the recognizable stressor during
service to support a claim of entitlement to service
connection for PTSD will vary depending on whether or not the
veteran was actually engaged in combat with the enemy. If
the evidence shows that the veteran engaged in combat with
the enemy and the claimed stressor is related to combat, no
further development for evidence of a stressor is necessary.
If the claimed stressor is not combat-related, a history of a
stressor as related by the veteran is, in itself,
insufficient. Service records must support the assertion
that the veteran was subjected to a stressor of sufficient
gravity to evoke the symptoms in almost anyone. The
existence of a recognizable stressor or accumulation of
stressors must be supported. It is important that the
stressor be described as to its nature, severity and date of
outcome. Hayes v. Brown, 5 Vet.App. 60, 67 (1993).
Once the occurrence of a stressful episode is established, it
then must be determined whether the claimed stressful event
was of sufficient gravity to support a diagnosis of PTSD.
The facts must establish that the veteran was exposed to an
event that is outside the range of usual human experience and
that would be markedly distressing to almost anyone, such as
experiencing an immediate threat to one’s life or witnessing
another person being seriously injured or killed. It is the
distressing event, rather than the mere presence in a combat
zone, which may constitute a valid stressor for purposes of
supporting a diagnosis of PTSD. Zarycki v. Brown, at 98-99.
Finally, it is noted that the Court has also indicated that
VA’s duty to assist is not always a one-way street. If a
veteran desires help, especially in verifying stressors, he
must provide that factual data necessary to conduct the
required search. Wood v. Derwinski, 1 Vet.App. 190, 193
(1991), reconsideration den., 1 Vet.App. 406 (1991).
As noted above, the veteran contends that service connection
for PTSD is warranted. After a review of the evidentiary
record, however, the Board finds that the veteran’s claim is
not well-grounded and that, accordingly, it fails and must be
denied.
The veteran’s report of medical examination for enlistment,
dated in October 1979, shows a normal psychiatric clinical
evaluation. In addition, his report of medical history, of
same date, shows that the veteran denied ever having had or
currently having depression or excessive worry or nervous
trouble of any sort.
The veteran’s service medical records show, however, that he
underwent both psychiatric examinations and a psychological
evaluation in March 1981 after he complained of emotional
problems reportedly related to the sudden death of his father
in July 1980, the sudden death of his brother in 1973 and his
mother’s inability to cope with these tragedies.
A service medical record, dated on March 26, 1981, shows the
following diagnosis, Axis I, reached after an emergency
psychiatric consultation: adjustment disorder, with mixed
disturbance of emotions and conduct and strong suicidal
propensities. In addition, the sudden death of his father in
1980, the sudden death of his brother in 1973, and
“bereavement in family members” were listed as psychosocial
stressors, Axis IV.
A service medical record, also dated on March 26, 1981,
reflects the results of a clinical psychologist’s evaluation.
According to this record, the veteran had reported chronic
difficulty in adjusting to the military and a strong desire
to return to his family, since he felt that he was “needed at
home.” He reportedly complained of chronic depression since
his father’s death, which had impaired his overall
functioning. The psychologist’s diagnostic impression was a
mixed personality disorder, severe, manifested by inadequate
response to stress, low frustration tolerance, social
withdrawal, low self-esteem, hypersensitivity, propensity of
self-damaging acts, and difficulty in functioning
independently. The veteran was found to have a long-standing
duly diagnosed character and behavior disorder which did not
require and would not benefit from psychiatric
hospitalization. Accordingly, the examiner recommended an
administrative discharge by reason of unsuitability.
The Board notes the existence of a provisional diagnosis of
PTSD, Axis I, in a service medical record, dated on March 27,
1981. However, the same psychosocial stressors mentioned
above were again listed in Axis IV. No references whatsoever
to any service-related stressful incidents during service
were noted.
A service record, dated on April 13, 1981, shows a
recommendation for an honorable discharge by reason of
unsuitability (“character and behavior disorder”). This
record indicates that the veteran was diagnosed with a mixed
personality disorder, severe, manifested by inadequate
response to stress, low frustration, tolerance, social
withdrawal, low self-esteem, hypersensitivity, propensity of
self-damaging acts, difficulty in functioning independently,
little desire to perform his duties and no motivation toward
his status in the Marine Corps. Another service record, of
same date, shows that the requested honorable discharge was
approved.
The veteran’s report of medical examination for separation,
dated in April 1981, shows an abnormal psychiatric clinical
evaluation. The abnormality was described as a mixed
personality disorder.
A VA Hospital Summary (VA Form 10-1000) , dated in September
1982, shows that the veteran was admitted for evaluation and
treatment of a major depressive episode with suicidal
ideation. A VA Clinical Record (VA Form 507) of same date
shows the following diagnoses: episodic alcohol abuse, Axis
I, and mixed personality disorder, with hostile-dependent
features, Axis II. Neither of these record shows any
references to traumatic incidents during service.
A VA medical record (VA Form 10-9034a), dated in April 1994,
shows that the veteran was admitted to the mental health
clinic with diagnoses of major depression, recurrent type,
with history of dysthymia, and ethanol, cannabis and
benzodiazepine abuse, Axis I; and “cluster B” personality
traits and dependent personality traits, Axis II. Again, no
references to any traumatic incidents during service, other
than his father’s “unexpected” death on July 11, 1980 (when
the veteran reportedly was in “boot camp”), due to a motor
vehicle accident, were noted. As indicated earlier in a
footnote, this record also shows that this was the veteran’s
fifth psychiatric admission since 1981.
Finally, the transcript of the May 1996 travel board hearing
shows that the veteran’s mother indicated that the veteran
was a normal, typical 17-year old teenager when he went into
active service, but that he had came back “[a] totally
different person” when discharged in 1981. Specifically, she
stated that, after his discharge, the veteran was very
depressed, would have crying and breaking down spells and
would seclude himself in his bedroom for many weeks and
months. In response to questions from the presiding officer,
she also said that the veteran was a normal child while
growing up, that he did not have any fits and that he got
along all right with his siblings.
The transcript of the May 1996 travel board hearing also
shows that the veteran’s testimony included the following
allegations:
1. The incidents that totally changed
him during service were, basically, his
father’s death and the “pressure of being
in the service,” during boot camp at Fort
Lejeune, where he was reprimanded for
being a day late, which hurt him “a lot.”
2. He was treated for his nerves during
service. However, that period of time
was a “blackout for [him]” (he did not
remember the details).
3. He thought about committing suicide
during service.
4. Upon his discharge, he did basically
nothing, initially. Then, he did “mainly
... construction work.” Since getting
out of service, however, the longest he
had ever held down a job had being for 9
months, and he had had at least over a
dozen jobs since 1981.
5. He was currently receiving SSA
benefits after being found unable to hold
down work or gainful employment due to
his nerves.
6. He was currently undergoing therapy
on an outpatient basis and taking
antidepressant medications (Zoloft and
Nortriptyline).
7. Currently, he did not socialize nor
have any hobbies. Basically, he just did
nothing.
8. He had had a “sleep disorder” since
getting out of the military.
Additionally, the aforementioned transcript shows that the
presiding officer specifically asked the veteran if he had
experienced any traumatic experiences, such as fear of losing
his life, seeing something so horrible that he could not
comprehend it, like atrocities in Vietnam or airplane crashes
or somebody shooting at him. The veteran’s response was the
following:
No, sir. The only trauma that I’ve
experienced was seeing my father in a
casket, casket [sic], that bears in my
mind a lot.
The veteran further indicated that he was never in fear of
his life, either in boot camp or subsequently, and
acknowledged that he had being intemperate with alcohol and
marijuana, but stated that he had not used them “in about a
year.” With regard to the way in which he was reportedly
treated during service after returning late from his father’s
funeral, he stated that, basically, one drill instructor made
him stand in a corner and treated him as a child in front of
other recruits, which did not help him “a bit.”
Finally, the transcript of the May 1996 travel board hearing
also shows that the veteran’s wife indicated that the veteran
was currently unable to take care of the house or their 3
children because of his condition and that he had “a lot of
mood swings,” as well as depression.
The veteran’s claim is clearly not well-grounded. There is
no competent evidence of a currently-manifested PTSD nor of
inservice stressors that may have triggered such a disorder.
While an argument could be advanced to the effect that an
inservice PTSD diagnosis is of record, this is noted to have
been a single, “provisional” and unsupported diagnosis, based
only on incidents totally unrelated to service. Therefore,
it is of very limited probative value and, accordingly, is
insufficient to support the veteran’s claim. Additionally,
other than the “trauma” of his father’s death,
contemporaneous, but totally unrelated to the veteran’s
period of military service, and an alleged reprimand by a
drill instructor after arriving late after his father’s
funeral, an incident reportedly occurred during service but
not sufficient to qualify as a “stressor” for PTSD purposes,
no other traumatic incidents during service have been
alleged. In fact, the veteran has acknowledged that he did
not experience any traumatic incidents during service, such
as fear of losing his life, seeing something so horrible that
he could not comprehend it, like atrocities in Vietnam or
airplane crashes or somebody shooting at him.
In view of the above, the Board finds that the veteran has
not met his initial burden of submitting a well-grounded
claim. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). The
criteria for the submission of such a claim, as set forth in
Caluza v. Brown, 7 Vet.App. 498, 506 (1995), have not been
met. Accordingly, the Board’s “duty to assist” him under
38 U.S.C.A. § 5107(a) (West 1991) has not arisen. Gilbert v.
Derwinski, 1 Vet.App. 49, 55 (1990).
Where a claim is not well grounded it is incomplete, and VA
is obliged under 38 U.S.C.A. § 5103(a) (West 1991) to advise
the claimant of the evidence needed to complete his
application. Robinette v. Brown, 8 Vet.App. 69 (1995). In
this regard, the Board’s present decision informs the veteran
that he needs to submit competent medical evidence of a
diagnosis of PTSD, the existence of verifiable, specific
stressful incidents occurred during his period of active
duty, and a nexus between said incidents and the PTSD
diagnosis, to have a well-grounded claim for service
connection for PTSD.
(CONTINUED ON NEXT PAGE)
ORDER
Service connection for post-traumatic stress disorder is
denied.
JACK W. BLASINGAME
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
As a matter of fact, more than one request for a search for service medical records by the National
Personnel Records Center are of record.
A VA medical record (VA Form 10-9034a), dated in April 1994, reflects the veteran’s “fifth” psychiatric
admission since 1981. The record, however, only contains copies of one other psychiatric admission
(September 1982).
In fact, a record dated on May 19, 1994, shows that a search by the National Personnel Records Center for
evidence of foreign or sea service or combat assignment had negative results.
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